Joseph P. Binkley, Jr., Judge

Biography

Reports of Cases Reviewed by Appellate Courts – Beginning Jan. 1, 2022

Text is the appellate court’s summary of the opinion. 

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Crowder v. Hargett, No. M2023-00590-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2023) (memorandum opinion). Appellant appeals the dismissal of his second lawsuit seeking damages and injunctive relief against four defendants allegedly associated with his criminal prosecution. The trial court dismissed the second lawsuit as barred by the doctrine of res judicata. We affirm.

Crotty v. Flora, No.   No. M2021-01193-SC-R11-CV (Tenn. Sept. 29, 2023).    Majority:    In this interlocutory appeal, the defendant physician in a health care liability action asks us to review two pretrial orders. In the first, the trial court excludes evidence that a nonparty physician was the cause-in-fact of the claimant’s injuries because the defendant never amended his answer to include that allegation, as required under Rule 8.03 of the Tennessee Rules of Civil Procedure as applied in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996). Because he does not allege that the nonparty physician was negligent, the defendant asks us to modify our holding in George and reverse the trial court’s order. We respectfully decline to do so. In the second pretrial order on appeal, the trial court considered Tennessee Code Annotated section 29-26-119, a provision that partially abrogates the common law collateral source rule in health care liability actions. It held that section 29-26-119 does not abrogate the collateral source rule under the facts of this case. We agree with the trial court that the collateral source rule remains in effect in this case. We affirm both of the trial court’s pretrial rulings.    Dissenting / Concurring:  This interlocutory appeal involves two pretrial orders. I concur with the holding and analysis of the majority as to the first pretrial order involving Rule 8.03 and George v. Alexander, 931 S.W.2d 517 (Tenn. 1996). However, I respectfully dissent from the majority’s holding and analysis as to the second pretrial order involving Tennessee Code Annotated section 29-26-119 and the collateral source rule. This issue requires the Court to interpret the meaning of section 29-26-119. I would hold that, when section 29-26-119 governs damages in a health care liability action, the statute’s clear language contemplates only “actual economic losses suffered . . . paid or payable,” thereby abrogating the collateral source rule. Thus, I would reverse the trial court’s pretrial order.

Westfield Ins. Group A/S/O David and Carol Neiger v. Embry, No. M2022-01301-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2023).  In this appeal, a defendant asserts that the trial court erred when it granted the plaintiff’s motion to voluntarily dismiss its complaint while the defendant’s motion to dismiss and for attorneys’ fees was pending. We hold that a pending motion to dismiss does not preclude the plaintiff from voluntarily dismissing its case pursuant to Tenn. R. Civ. P. 41.01. Likewise, the defendant’s request for attorneys’ fees did not create a “vested right” preventing the plaintiff from voluntarily dismissing its case. The ruling of the trial court is affirmed.

Holzmer v. The Estate of James F. Walsh, Jr., No. M2022-00616-COA-R3-CV (Tenn. Ct. App. July 28, 2023). This is an appeal from a jury verdict awarding damages to a plaintiff injured in a car accident. The plaintiff asserts that the trial court erred in excluding evidence of her medical bills. Because the plaintiff failed to present expert proof that her medical expenses were necessary, we find that the trial court did not abuse its discretion in excluding the bills. The jury verdict is affirmed.

Ultsch v. HTI Memorial Hosptial Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023).   Majority: “When there is a conflict between the common law and a statute, the provision of the statute must prevail.” Graves v. Ill. Cent. R.R. Co., 148 S.W. 239, 242 (Tenn. 1912). That longstanding rule is the key to resolving this case, which pits a common-law rule governing
vicarious liability claims against certain procedural provisions of Tennessee’s Health Care Liability Act. The defendant in this case moved to dismiss the plaintiff’s claims under the
common-law rule. The trial court granted that motion, but the Court of Appeals reversed after concluding that application of the common-law rule would conflict with the Act. We
agree that the Act necessarily implies an intent to abrogate the common-law rule in the circumstances of this case and affirm the Court of Appeals’ decision.  Concurrence:  This case presents a simple issue: Whether the Tennessee Health Care Liability Act’s statute of limitation extension prevails over the common law rule that a plaintiff cannot pursue a vicarious liability claim against a principal when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts the vicarious liability claim against the principal. This common law rule is known as the operation-of-law exception. Here, the Plaintiff filed a vicarious liability suit against the principal, TriStar Skyline Medical Center, after the one-year statute of limitations had expired as to Skyline’s agents but within the Act’s 120-day extension of the statute of limitations as to Skyline. Was the suit timely filed? Yes—the Act’s provisions prevail over the common law operation-of-law exception. Dissent: This appeal requires this Court to examine the intersection of a common law principle pertaining broadly to vicarious liability, known as the operation-of-law exception, and a series of relatively recent legislative enactments that apply to health care liability actions, known as the Health Care Liability Act (“HCLA”). The result reached by a majority of the Court turns on the longstanding rule that “[w]hen there is a conflict between the common law and a statute, the provision of the statute must prevail.” Graves v. Ill. Cent. R.R. Co., 148 S.W. 239, 242 (Tenn. 1912). The majority chooses not to give effect to the operation-of-law exception under the circumstances of this case, concluding that it would conflict with provisions of the HCLA. In my view, however, the majority abrogates the common law principle despite the lack of direct conflict between it and the HCLA. Applying the operation-of-law exception in this case, I would affirm the judgment of the trial court dismissing the vicarious liability claim against the principal because suit was filed after any health care liability claims against the principal’s agents were procedurally barred by the applicable statute of limitations. Accordingly, I respectfully dissent from the result reached by the majority.

Gardner v. Saint Thomas Midtown Hospital,  No. M2019-02237-SC-R11-CV  (Tenn. July 20, 2023).   Majority: “When there is a conflict between the common law and a statute, the provision of the statute must prevail.” Graves v. Ill. Cent. R.R. Co., 148 S.W. 239, 242 (Tenn. 1912). That longstanding rule is the key to resolving this case, which pits a common-law rule governing vicarious liability claims against certain procedural provisions of Tennessee’s Health Care Liability Act. The defendant in this case moved to dismiss the plaintiff’s claims under the
common-law rule. The trial court granted that motion, but the Court of Appeals reversed after concluding that application of the common-law rule would conflict with the Act. We
agree that the Act necessarily implies an intent to abrogate the common-law rule in the circumstances of this case and affirm the Court of Appeals’ decision.  Concurrence:  This case presents a simple issue: Whether the Tennessee Health Care Liability Act’s statute of limitation extension prevails over the common law rule that a plaintiff cannot pursue a vicarious liability claim against a principal when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts the vicarious liability claim against the principal. This common law rule is known as the operation-of-law exception. Here, the Plaintiff filed a vicarious liability suit against the principal, TriStar Skyline Medical Center, after the one-year statute of limitations had expired as to Skyline’s agents but within the Act’s 120-day extension of the statute of limitations as to Skyline. Was the suit timely filed? Yes—the Act’s provisions prevail over the common law operation-of-law exception. Dissent: This appeal presents issues similar to those in Ultsch v. HTI Memorial Hospital Corp., No. M2020-00341-SC-R11-CV, ___ S.W.3d ___ (Tenn. 2023). In that case, I dissented from the result reached by a majority of the Court, which held that provisions of the statutory scheme commonly referred to as the Health Care Liability Act (“HCLA”) abrogated the common law vicarious liability principle known as the operation-of-law exception. I reach the same conclusion here and respectfully dissent from the result reached by the majority in this case.

Ware v. Metro Water Services, No. M2022-01114-COA-R3-CV (Tenn. Ct. App. May 30, 2023). Plaintiff sued for personal injuries under the Tennessee Governmental Tort Liability Act, alleging she had experienced a fall due to an unsecure water meter valve cover located in her sister’s yard. Following a bench trial, the trial court entered an order finding that Plaintiff had not met her burden of proof. Although Plaintiff appeals the dismissal of her case, we affirm the trial court’s judgment.

Martinez v. Lee, No.  M2023-00235-COA-R3-CV(Tenn. Ct. App. Apr. 5, 2023). This is an appeal from an order dismissing a petition for writ of mandamus. Because the appellant did not file his notice of appeal within thirty days after entry of the order as required by Tennessee Rule of Appellate Procedure 4(a), we dismiss the appeal.

Krone v. Krone, No. M2021-01020- COA-R3-CV (Tenn. Ct. App. Mar. 14, 2023). A mother obtained an order of protection against her son in general sessions court. The son appealed to circuit court. Through the parties’ inaction, the case languished for more than five years, leading to the circuit court dismissing the case. In response, the son filed various motions and documents seeking restoration of the case to the docket and further relief, which resulted in a hearing and additional orders being entered by the circuit court. Through these orders, the circuit court ruled in accordance with the son’s position that the order of protection was no longer in effect and had not been in effect for years. The circuit court also concluded that, given the parties’ inaction and because the case had become moot, dismissal rather than restoration to the docket was appropriate. The son appealed. We conclude that for purposes of this appeal the case is moot.

Simonetti v. McCormack, No. M2022-01669-COA-T10B-CV (Tenn. Ct. App. Feb. 13, 2023). Following a hearing on the issue of attorney’s fees resulting from a discovery dispute, the trial judge or his office contacted an attorney for the defendants to obtain certain discovery responses that had not been filed with the court. The defendants’ attorney responded by email with the requested documents, carbon-copying plaintiffs’ counsel on the email. The trial court then entered an order awarding the plaintiffs attorney’s fees in which the feesawarded were only a small portion of those requested. The plaintiffs filed a motion to recuse, citing the communication between the defendants’ attorney and the trial judge. The trial court denied the motion for recusal. We agree with the trial court’s ultimate conclusion that recusal was not required.

Robinson v. City of Clarksville, No. M2019-02053-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2023).  The owners of a restaurant in downtown Clarksville sued the City of Clarksville for breach of contract, promissory estoppel, interference with business relationship, diminution of value of land, and a takings claim under 42 U.S.C. § 1983 for the City’s failure to construct an alleyway on property Plaintiffs sold the City. Plaintiffs also filed a claim for inverse condemnation alleging that the City’s construction of a sewer line encroached on their land. The trial court dismissed Plaintiffs’ claims for breach of contract, interference with business relationship, diminution of value of land, and section 1983 claim for failure to state a claim under Tenn. R. Civ. P. 12.02(6) and dismissed Plaintiffs’ promissory estoppel claim on summary judgment. After a jury trial on the inverse condemnation claim, the jury awarded Plaintiffs $8,335 for the value of land on which the sewer was built, and the trial court awarded Plaintiffs $30,000 in attorneys’ and paralegals’ fees. Plaintiffs appeal each of the dismissals, the measure of damages from the jury trial, and the award of attorneys’ and paralegals’ fees, among other things. We affirm the decisions of the trial court and decline to award Plaintiffs their attorneys’ fees on appeal.

Besses v. Killian, No. No. M2021-01121-COA-R3-CV  (Tenn. Ct. App. Jan. 27, 2023). This case arises out of a vehicular accident between Ciera Besses (“Plaintiff”) and James Killian (“Defendant”). Plaintiff filed a complaint for damages, seeking compensation for past and future medical expenses, loss of earnings, pain and suffering, and loss of enjoyment of life. Defendant admitted fault but challenged the reasonableness and necessity of certain medical, hospital, and doctor bills itemized by Plaintiff. Defendant also contended that some of Plaintiff’s claimed injuries were not causally related to the accident. The jury awarded $16,720 to Plaintiff in damages, which represented $12,720 for medical expenses; $3,000 for past physical pain and mental suffering; $1,000 for past loss of enjoyment of life, and $0.00 for future physical pain and suffering and future loss of enjoyment of life. Plaintiff filed a motion for additur and/or new trial, which the trial court denied. Plaintiff appeals, contending that the trial court erred by denying her motion for a new trial. We have determined it did not. Thus, we affirm.

Burgess v. Bradford Hills HOA, No. M2020-01565-COA-R3-CV (Tenn. Ct. App. Jan. 10, 2023).  A homeowner sued his homeowners’ association in general sessions court. Upon motion of the homeowner’s association, the case was removed to circuit court. After the case was removed to circuit court, the homeowner amended his complaint to add an attorney for the homeowner’s association as a defendant. The homeowner’s association and the attorney sought to dismiss the amended complaint. The circuit court granted the motions to dismiss but allowed to the homeowner to file a second amended complaint against the attorney in order to state a claim for negligent misrepresentation. Ultimately, the circuit court granted the attorney a judgment on the pleadings after concluding that the second amended complaint failed to allege facts satisfying all of the elements of a claim for negligent misrepresentation. The homeowner appealed. Discerning that the circuit court erred in granting the homeowner’s association’s motion to dismiss, we vacate that portion of the court’s judgment and remand for further proceedings. We affirm the circuit court’s judgment in all other respects.

Tino v. Walker,  M2021-01230-COA-R3-CV (Tenn. Ct. App. July 18, 2022).  In this premises liability case, the plaintiff appeals the trial court’s order granting the defendants’ motion for summary judgment and dismissing the plaintiff’s complaint with prejudice.  The plaintiff contends that the trial court erred by determining that the divot in the brick step that caused her to trip and fall amounted to a minor aberration and that, as a result, the defendants did not owe her a duty of care.  Discerning no reversible error, we affirm.

Simmonetti v. McCormick, No. M2021-00754-COA-R3-CV, p. 4 (Tenn. Ct. App. May 24, 2022).  This appeal arises from the denial of a motion to compel arbitration in a construction dispute involving the purchase of a newly constructed townhome in Nashville. The plaintiffs brought suit in the Davidson County Circuit Court, asserting claims of promissory fraud, breach of contract, and breach of implied warranty, while also attempting to pierce the corporate veil of one of the involved companies. The defendants filed motions to dismiss and/or compel arbitration, contending that the contract between the parties required the matter to be resolved via arbitration. The trial court denied the motions in an order finding that the arbitration clause relied upon by the defendants was part of a warranty that was not included in the initial contract and to which the plaintiffs had not agreed. Discerning no error, we affirm the trial court’s denial of the motions.

Reed v. Cars of Nashville, Inc.  No. M2021-00854-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2022). This action involves a contractual dispute over the sale of a 2010 Honda Civic that a pro se appellant purchased from a used car dealer. The appellant’s brief significantly fails to comply with Tennessee Rule of Appellate Procedure 27. Accordingly, we find that any issues on appeal are waived. We dismiss the appeal. 

Isaac D. Walker v. Robert L. McMillin et al., No. M2020-01507-COA-R3-CV (Tenn. Ct. App. Feb. 11, 2022). This appeal arises from the summary dismissal of a negligence action filed by a plaintiff-motorist against a truck driver and the driver’s employer. The plaintiff alleged that he was injured in a single-vehicle accident on Interstate 24 in Nashville, Tennessee,when he swerved to avoid tire debris from the truck driver’s trailer. The plaintiff further alleged that the truck driver and his employer were negligent in the maintenance and inspection of the vehicle, and that the truck driver acted negligently by leaving the debris on the roadway without attempting to retrieve it, warn other motorists, or call law enforcement. After discovery, the defendants moved for summary judgment on all claims. The trial court granted the motion in part, finding no evidence that the tire blowout was caused by a failure in the maintenance and inspection of the tire. The court also found no evidence that the truck driver’s failure to call law enforcement caused the accident. But the court asked for supplemental briefing on whether a driver has a common-law duty to remove from a roadway tire debris that came from his vehicle and/or a duty to warn motorists of the debris. After additional briefing and a second hearing, the court summarily dismissed that claim as well, ruling that the defendant truck driver had no duty as a matter of law to attempt to retrieve the tire from the interstate highway and that there were no facts to support a finding that the defendant driver had sufficient time to do so. The plaintiff subsequently filed a motion to alter or amend, arguing that he was entitled to the benefit of an adverse inference for spoliation of evidence as a discovery sanction because the defendants failed to preserve the blown tire. The trial court denied the motion, reasoning that the plaintiff knew about the potential spoliation issue for six years and failed to raise it in his response to the motion for summary judgment. This appeal followed. We affirm the trial court in all respects.